On July 2, the European Commission released a much delayed framework directive on the rights of patients within the EU to receive health care in any member state at the expense of their own country's health system. The directive is subject to approval by governments and the European Parliament, and is not expected to become law for several years, yet it has already received a less than warm response from England's Department of Health.
In reality, the new directive is not a radical one. Although EU citizens might not have been aware of it, for almost four decades they have had the right to receive health care across the Community, paid for by the authorities in their home state. But there are currently several legal pathways open to them. The first is via the European Health Insurance Card (formerly E111), which covers those who fall ill incidentally while in another European country. Those who want to travel abroad specifically for treatment need to seek “prior authorisation” from their health authority if they expect it to pay. More recently, however, imposition of such prior authorisation was challenged in the European Court of Justice by two individuals (Dekker and Kohll), who claimed that prior authorisation contravened provisions on the free movement of goods and services laid down in the EU Treaty. As more cases followed, establishing the wider applicability of each decision became difficult, and the legal position was rendered messy to say the least.
In recognition of these ambiguities, one of the chief objectives of the new directive is to provide EU citizens with more clarity about their legal rights to receive health care in other member states. In practice, this means an across-the-board entitlement to health care in any country of the EU, reimbursed by the home country up to the value of the cost of that treatment at home, without the need to seek prior approval.
Such streamlining and clarification is welcome and in line with the principles outlined in Ara Darzi's recent report on the NHS Next Stage Review—ie, providing patients with greater access to information and greater control over their own care. Treatments that home countries are expected to pay for are limited to those that would be covered within that country, so a patient could not travel abroad for cosmetic surgery, for example, and still expect to be reimbursed. Nor are home countries expected to pick up the pieces should something go wrong during medical care abroad—the onus is on the provider of care to set up procedures to deal with medical errors and to facilitate compensation.
What are the objections? First, there has been concern that some hospitals, particularly in border areas, could experience such an efflux of patients as to render them financially non-viable. Second, especially in the UK, the idea that patients will seek to escape long waiting times and hospitals engrained with “superbugs” has led to the suggestion that more patients would be treated if they were able to go abroad freely than if they stayed at home, thus vastly increasing the cost to the NHS. Finally, yet paradoxically, England's Department of Health seems desperate to protect the NHS from the hordes of “health tourists” suspected of arriving from overseas.
Such arguments seem unfounded. The proposed directive allows for hospitals to require patients to seek prior authorisation from them if they can provide convincing evidence that the legislation is having detrimental effects on their financial viability. As for the notion that the NHS will have to pay for the treatment of more of its own perfectly eligible patients, any objection seems fundamentally immoral. The reality is that, apart from the real health tourism industry, which is enjoying a huge increase in the numbers of patients travelling abroad for treatments such as cosmetic surgery, fertility treatment, and dentistry, paid for with their own money, few patients actually travel cross-border for state-reimbursed care, and few more are likely to do so in the wake of this directive. The only difference will be that, should such care become necessary, the route by which it is achieved is unambiguous.
Of course there are issues to be considered. Home countries must make patients aware of the realities of care abroad: patients must pay for their own accommodation and travel; they cannot expect to see a doctor who speaks their own language fluently; and some countries might have more comprehensive quality and safety mechanisms in place than others. Yet at the directive's heart is greater clarity for patients, improved quality assurance, better continuity of care, and clearer accountability should things go wrong. It is now up to European member states to embrace these principles and to do their best to flesh them out before the directive becomes law